Barry Friedman on United States v. Jones

Professor Barry Friedman’s opinion piece in the New York Times on Jones is characteristically insightful: we’ve featured his work in our Bright Ideas series and other posts. His piece adds an important layer to, and echoes, the conversation our experts have been having this past week. If you haven’t seen it, here it is:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum.

Perhaps too quickly. Jones, along with other recent decisions, may turn the Fourth Amendment into a ticking time bomb, set to self-destruct — and soon — in the face of rapidly emerging technology.

Dog sniffs. Heat sensors. Helicopter flyovers. Are these “searches” within the meaning of the Fourth Amendment? The court has struggled with these questions over the years.

Writing for the court in Jones, Justice Antonin Scalia looked to the 18th century for guidance. In his view, attaching the GPS was the sort of physical invasion of property the framers had in mind when they wrote the Bill of Rights.

Though Justice Samuel A. Alito Jr. agreed that GPS tracking was a search, he ridiculed Justice Scalia for focusing on “conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” For Justice Alito, the risk the GPS posed was loss of privacy, not property. Instead the question was whether long-term GPS tracking violated today’s “reasonable expectations of privacy,” not those of another era. As a matter of existing doctrine, he asked the right question, but when applied to the government, the standard he used could turn our lives into the proverbial open book, and soon.

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.

Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term. (He didn’t deny the importance of today’s expectations; he simply stressed that at the very least, the Fourth Amendment protects rights we had when the framers drafted the Constitution.) Still, his approach is problematic. There isn’t always an available 18th-century analog for current government conduct, like GPS tracking. Justice Alito facetiously suggested that the only 18th-century analog would have been a constable hiding in the back of someone’s carriage. (When Justice Scalia agreed, Justice Alito wryly remarked that “this would have required either a gigantic coach, a very tiny constable, or both.”) And when 18th-century analogs run out, the court is left with its reasonable expectation test.

In a related case, Kyllo v. United States, even Justice Scalia held that police use of a thermal imager to detect marijuana “grow lamps” within a home was a search — but only so long as such technology was “not in general public use.” There’s that time bomb: expanding use of technology narrows rights.

Among the justices in the Jones case, only Sonia Sotomayor insisted that fundamental rights not be hostage to technological change. She called into question the court’s longstanding reliance on expectations of privacy, which she deemed “ill-suited to the digital age.” She suggested reconsidering the rule that the police can, without a warrant, get the vast amounts of information about ourselves that we give to third parties. To her, sharing our secrets — including e-mail and banking histories — with someone else does not necessarily mean the government gets access, too. It is too bad her separate opinion mustered no other votes.

Barry Friedman is a professor at the New York University School of Law and the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”

2 Responses

“Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term.”

Nothing the slightest bit paradoxical about it: Scalia insists that the original scope of the 4th amendment is the absolute minimum scope it may have, and any departures from that minimum must be in the nature of expansions. While Alito leaves everything up for grabs, no minimum guarantee at all: The Court could some day say people don’t have a “reasonable expectation” of privacy in their very thoughts, and authorize mind reading without warrant.

“Living” constitutionalism is, in practice, much more about evading black letter limitations on government, than adding limitations. Naturally an originalist, even one as inconsistent as Scalia, is going to be better at retaining limitations on government in the long run. They’re not trying to do the exact opposite!